COMMERCIAL BUILDING SUBCONTRACT
Schedule of specific details to be provided when agreed with Hindmarsh Plumbing.
- In this Subcontract:
- Works means the construction of the works as described in item 1 of the Schedule including any Variations to this Subcontract.
- Design means the design of the Works as detailed in item 1 of the Schedule.
- Date for practical completion means the date shown in item 3A of the Schedule.
- Force majeure means any event beyond the control of a party which prevents or impedes the performance of the party’s obligations under this Subcontract including:
- act of God, including flood, lightning, typhoon or cyclone, earthquake, landslide and other natural disasters;
- fire, fusion, explosion, smoke, theft, water damage;
- any operation of the forces of nature of catastrophic proportion;
- acts of terrorism;
- impact by vehicles or aircraft or articles dropped from aircraft;
- epidemic, pandemic or quarantine;
- Government embargo, trade restraints, unavailability or shortage of electricity or raw materials;
- riot or civil commotion, hostilities of war whether declared or not;
- industrial action or dispute which affects the State or Territory where the Works are being carried out or Australia generally and is not directed at the affected party or any of its related entities; or
- any occurrence of which could not have been reasonably foreseen by the party seeking to rely on such occurrence and was not the fault of the party seeking to rely on the occurrence.
- Head Contract means the Contract between Hindmarsh and the Principal or between Hindmarsh’s principal contractor and Hindmarsh as the case may be.
- Head Contract Works mean the works to be done by Hindmarsh pursuant to the Head Contract, including any variations to the Head Contract.
- Subcontract Price is set out in item 2 of the Schedule.
- Method of Payment is as specified in item 3 of the Schedule
- Principal is the principal named in item 4 of the Schedule
- PPS Act means the Personal Property Securities Act 2009 (Cth);
- Proportionate Liability Legislation means the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA);
- Security of Payment Act means the Building and Construction Industry Security of Payment Act 2009 (SA) or the equivalent security of payment legislation in force in the State or Territory where the Works are to be carried out;
- Subcontractor is the party named in item 5 of the Schedule.
- Hindmarsh is Hindmarsh Plumbing Services Pty. Limited ACN 007 744 792
- Security Amount is the percentage or amount in item 8 of the Schedule.
- Defects Liability Period is set out in item 6 of the Schedule or if no duration is specified in that item, 12 months from the date of the completion of the Works.
- Variation is any change to this Subcontract or the Works and includes any reduction in the Works or a substantial or an entire deletion of the Works.
- Site is the site where the Works are to be done as set out in item 7 of the Schedule.
- Reference to the singular includes the plural and vice versa, and reference to any gender includes all genders, and reference to a person includes a corporation and vice versa.
- The laws of South Australia govern this Subcontract and any legal action relating to it must be brought in the South Australian Courts.
- A party may only assign the benefit of this Subcontract with the prior written consent of the other party.
- This Subcontract is binding on and remains for the benefit of the parties and their respective executors, administrators, successors and permitted assigns.
- If any court or other competent authority declares any part of this Subcontract unenforceable or if this Subcontract would, if any part were not omitted, be unenforceable then:-
- that part will, without in any way affecting the enforceability of the remainder of this Subcontract, be severable and this Subcontract will be construed as if that part were not contained in the Subcontract; and
- the parties must attempt to renegotiate that part in good faith.
- This Subcontract constitutes the entire agreement between the parties regarding its subject matter and supersedes all previous negotiations, commitments and writings regarding that subject matter.
- No provision of this Subcontract:-
- merges on or by virtue of completion; or
- merges or is modified, discharged or prejudiced by virtue of any requirement or condition of this Subcontract being waived.
- This nature of this Subcontract is an all-inclusive, no variation, fixed price and fixed time contract and the effect of it is that the Subcontractor:
- must supply all materials and equipment, perform all labour necessary and perform all temporary works necessary to complete the Works at its cost;
- is not entitled to be paid any amount in addition to the Subcontract Price on any basis whatsoever unless Hindmarsh varies the scope of the Works in accordance with this Subcontract and the Subcontractor thereby incurs additional costs, in which case the additional amount to be paid to the Subcontractor is to be valued pursuant to clause 30 and 31; and
- is not entitled to any extension of time to the Date for practical completion on any basis whatsoever except as expressly provided in this Subcontract
REFERENCE TO HEAD CONTRACT
- A copy of the Head Contract is available for inspection at Hindmarsh’s office. Hindmarsh will provide a copy of the Head Contract to the Subcontractor if requested to do so. Hindmarsh may remove pricing and other commercially confidential information from such copy.
- If provisions of the Head Contract (which are not inconsistent with the provisions of this Subcontract) apply to or relate to the Works, then the Subcontractor must comply with such provisions.
- Hindmarsh may give (and the Subcontractor shall follow all and any) directions given by Hindmarsh, especially those which relate to the Head Contract or the construction of the Head Contract Works.
- If the Subcontractor becomes aware of anything which might constitute a Variation under this Subcontract or the Head Contract or might result in a delay under this Subcontract or the Head Contract then the Subcontractor must promptly and in any event within no more than 2 business days inform Hindmarsh in writing with full details of the possible variation or delay.
- If Hindmarsh is bound by any decision or direction of any certifying party (e.g. architect, Superintendent) referred to in the Head Contract in respect of the Works, then the Subcontractor is also bound by any such decision or direction.
SUBCONTRACTOR TO DO THE WORKS
- The Subcontractor will do the Works;
- as required by this Subcontract;
- as required by the terms of the Head Contract which are not inconsistent with the provisions of this Subcontract; and
- as required by any written direction given by Hindmarsh.
- Hindmarsh will pay the Subcontractor the Subcontract Price.
- Starting the Works is deemed to be acceptance by the Subcontractor of all the terms and conditions of this Subcontract.
- The Subcontractor is responsible for all labour, materials, tools, equipment, clothing, administrative and other expenses incurred in connection with its performance of the Works.
- The Subcontractor is responsible for any costs or expenses incurred in complying with all laws, regulations and/or industry agreements which relate to the Works.
- The Subcontractor acknowledges that it is responsible for checking, determining and marking the locations of existing services, whether underground and/or within wall structures or roof structures or otherwise and warrants that it has allowed for doing these things in the Subcontract Price.
- The Subcontractor will start the Works within 5 days of Hindmarsh’s request.
- The Subcontractor will comply with any construction programme given by Hindmarsh to the Subcontractor.
- If no construction programme is provided by Hindmarsh, the Subcontractor will carry out the Works at a reasonable pace.
- The Subcontractor will bring the Works to practical completion by the Date for practical completion.
- If the Works do not reach practical completion by the Date for practical completion, the Subcontractor will be liable to Hindmarsh for liquidated damages at the rate in item 3B of the Schedule for every day after the date for practical completion to and including the earliest of the date of practical completion or termination of the Contract. Such amount shall be a debt due and payable by the Subcontractor to Hindmarsh.
- It is agreed that the amount in item 3B is a genuine pre-estimate of the loss that Hindmarsh will suffer if the Works are not brought to practical completion by the Date for practical completion.
- The Subcontractor shall be entitled to an extension of time for carrying out the Works (including reaching practical completion), if:
- the Subcontractor is or will be delayed by any of the causes of delay in item 3C of the Schedule; and
- the Subcontractor gives Hindmarsh, within 7 days of when the Subcontractor becomes aware of that causation occurring, a written claim for an extension of time setting out the facts of causation and of the delay to the Works (including extent).
- Subject to compliance with clause 19, the Subcontractor will be entitled to an extension of time to do the Works if there is a global delay in the supply of materials where it is not commercially reasonable for alternative supply of such materials to be obtained. Any such extension of time shall be for a period that is reasonable in the opinion of Hindmarsh acting reasonably having regard to such supply delay.
- Any extension of time under clause 19 will not give rise to a right on the part of the Subcontractor to claim any additional payment whatsoever.
- If the Subcontractor fails to comply strictly with clause 19 it shall have no claim for an extension of time.
STANDARD and DETAIL OF WORK
- The Subcontractor will do the Works in a proper and workmanlike manner as required by any statute, building code or applicable standard.
- The Subcontractor will do the Works in accordance with the plans, specifications and other details referred to in item 1 of the Schedule.
- If there are any inconsistencies between this Subcontract, the plans, the specifications or other details referred to in item 1 of the Schedule 1, the Subcontractor will inform Hindmarsh immediately and before carrying out any work that is affected by that inconsistency and the Subcontractor will advise Hindmarsh of the work which is required and any extra time that is required to do that work.
- The materials supplied by the Subcontractor must be of good quality and be and fit and proper for their purpose.
- No Variation will invalidate this Subcontract Agreement.
- If Hindmarsh requires a Variation, Hindmarsh will issue a written order to the Subcontractor setting out the details of the Variation.
- If the Variation is not urgent, where there is sufficient time to do so the Subcontractor will provide a written quote to Hindmarsh to do the Variation and an estimate of the additional time if any required to do the Variation.
- If Hindmarsh accepts the Subcontractor’s quote given under clause 29, the Subcontract Price and the time to complete the Works will be varied accordingly and the Subcontractor will do the Variation.
- If the Variation is urgent:
- the Subcontractor will proceed to do the Variation;
- the Subcontract Price will be increased by the cost incurred by the Subcontractor in doing the Variation plus 10% for the Subcontractor’s profit and overheads;
- if the Variation results in a reduction in the scope of the Work and there is any cost saving, any reduction in the Subcontract Price will include 10% for the Subcontractor’s profit and overheads.
- If the Subcontractor becomes aware of anything which might constitute a Variation under this Subcontract or might result in a delay under this Subcontract then the Subcontractor must promptly and in any event within no more than 2 business days inform Hindmarsh in writing with full details of the possible variation or delay.
- If Hindmarsh asks, the Subcontractor will give Hindmarsh copies of properly detailed documentation to prove its cost claimed under clause 31.
- The Subcontractor will make claims for payment by the 26th day of each month.
- Each claim will include details satisfactory to Hindmarsh of the work done and the materials supplied in connection with that work and to which the claim relates.
- Hindmarsh will assess each claim and advise the Subcontractor in writing of its assessment of the amount properly payable to the Subcontractor in relation to the claim.
- Hindmarsh will pay the assessed amount for the claim by the last day of the month after the claim was made.
- Unless bank guarantees are provided by the Subcontractor, Hindmarsh will deduct from the first progress claim (and from subsequent progress claims if necessary) an amount not exceeding the Security Amount and, subject to clause 33, Hindmarsh will pay:
- half of the amount retained to the Subcontractor on completion of the Works; and
- the balance of the amount retained at the end of the Defects Liability Period.
- If bank guarantees are provided by the Subcontractor then, subject to clause 40:
- one guarantee shall be returned to the Subcontractor on completion of the Works; and
- the other guarantee shall be returned to the Subcontractor at the end of the Defects Liability Period.
- Hindmarsh may deduct from the Security Amount (or the proceeds of a bank guarantee as the case may be) any sum required to make good any faulty work of the Subcontractor provided that:
- Hindmarsh has first given the Subcontractor written notice of such faults; and
- the Subcontractor has failed to rectify such faults within 7 days of receipt of notice under clause 40.1 or any longer period specified by Hindmarsh.
SECURITY OF PAYMENT
- The parties acknowledge and agree that the times or stages for progress claims stated in Item 9 of the Schedule and determined in accordance with this clause are, for the purposes of the Security of Payment Act, the “reference date”.
- The Subcontractor indemnifies Hindmarsh against all damage, expense (including lawyers’ fees and expenses on a solicitor/client basis), loss or liability suffered or incurred by Hindmarsh arising as a direct consequence of a suspension pursuant to the Security of Payment Act by a subcontractor of work which forms part of the Works.
- If Hindmarsh determines that this Subcontract or a transaction in connection with it is or contains a security interest for the purposes of the PPS Act, the Subcontractor agrees to do anything (such as obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) which Hindmarsh asks and considers necessary for the purposes of:
- ensuring that the security interest is enforceable, perfected (including, where possible, by control in addition to registration) and otherwise effective; or
- enabling Hindmarsh to apply for any registration, or give any notification, in connection with the security interest so that the security interest has the priority required by Hindmarsh; or
- enabling Hindmarsh; to exercise rights in connection with the security interest.
- The Subcontractor agrees:
- not to create any security interest or lien over any of Hindmarsh’s Personal Property;
- not to sell, lease or dispose of its interest in Hindmarsh’s Personal Property;
- not to give possession of Hindmarsh’s Personal Property to another person except where the Hindmarsh expressly authorises it to do so;
- to notify Hindmarsh at least 14 days before:
- the Subcontractor changes its name, place of business or place of registration or incorporation;
- any ABN, ARBN or ARSN allocated to the the Subcontractor changes, is cancelled or otherwise ceases to apply to it (or if it does not have an ABN, ARBN or one is allocated, or otherwise starts to apply, to it); and
- the Subcontractor becomes trustee of a trust, or a partner in a partnership.
- If this Subcontract, or a transaction in connection with it is or contains a security interest for the purposes of the PPS Act, each party agrees that to the extent the Law permits them to be excluded:
- sections 142 and 143 of the PPS Act are excluded and the relevant secured party need not comply with the following provisions of the PPS Act: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4) and any other provision of the PPS Act notified to the grantor by the relevant secured party after the date of this Subcontract; and
- Hindmarsh’s need give any notice required under any provision of the PPS Act (except section 135).
- Any reference in clauses 43 to 45 (inclusive) to terms defined or used in the PPS Act is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.
- The Subcontractor will have public liability insurance of at least $20,000,000.00.
- The Subcontractor will insure the Works until practical completion under a contract works policy.
- The Subcontractor will insure all equipment relating to the Works until practical completion and all materials to be used in connection with the Works until those materials have been incorporated into the Works.
- The Subcontractor will provide to Hindmarsh a copy of any insurance policy if requested to do so.
- The Subcontractor will pay any Workcover levies which are its responsibility.
- The Subcontractor will allow the Principal, Hindmarsh and the Superintendent/Architect any access necessary to inspect the Works (including inspection of any materials prior to installation).
- The Subcontractor will keep the site around the Works clean during or at the completion of the Work and at all times ensure that all debris is stockpiled in locations as directed by Hindmarsh.
DEFECTS, BREACH AND TERMINATION
- Defective workmanship by the Subcontractor must be rectified promptly once notified by Hindmarsh and must be repaired and completed at no cost to Hindmarsh. If rectification, repair and completion is urgent, the necessary work must be done immediately but otherwise it must be done within 3 business days.
- If the Subcontractor breaches one or more of the requirements of this Subcontract then Hindmarsh may, by written notice to the Subcontractor, inform the Subcontractor of the breach and may require the Subcontractor to:
- remedy the breach within a specified but reasonable time, and/or
- provide further information or documentation to Hindmarsh.
- If within 7 days or such other reasonable period that Hindmarsh may provide the Subcontractor does not remedy the breach and/or provide further information or documentation to Hindmarsh as requested by written notice under clause 55 then Hindmarsh may either:
- terminate this Subcontract by further written notice to the Subcontractor; or
- take work out of the hands of the Subcontractor.
- If Hindmarsh elects to take work out of the hands of the Subcontractor under clause 42.2 Hindmarsh may suspend payments to the Subcontractor until payment becomes due and payable under clause 58.
- Once the work taken out of the hands of the Subcontractor has been completed and Hindmarsh has established the cost of completing such work, Hindmarsh shall:
- notify the Subcontractor that such work has been completed; and
- pay to the Subcontractor the difference between that cost (plus an amount for Hindmarsh’s administration and overheads being 15% of such cost) and the amount which would otherwise have been paid to the Subcontractor if such work had been completed by the Subcontractor.
- If the Subcontractor fails to perform or complete the Works as required pursuant to this Subcontract and Hindmarsh is liable to the Principal or the Head Subcontractor as the case may be for liquidated damages, the amount of such liquidated damages shall be a debt due and payable by the Subcontractor to Hindmarsh.
- If either party;
- enters into a scheme of arrangement, or
- has an Administrator or controller appointed, or
- has a winding up order made against it, or
- gives notice of a meeting of creditors, or
- is made bankrupt or petitions for bankruptcythen the other party may at any time, without prejudice to its other rights or remedies, by written notice immediately terminate this Subcontract.
- If Hindmarsh fails to pay any amount due to the Subcontractor under this Subcontract, the Subcontractor may give written notice to Hindmarsh to remedy its breach within a period of no less than 14 days.
- If Hindmarsh fails to remedy a breach notified under clause 61 with the period set out in that notice, the Subcontractor may by separate written notice terminate this Subcontract.
- If the Subcontractor fails to pay any amount due and payable to Hindmarsh within 14 days of a claim for such payment, Hindmarsh may immediately terminate this Subcontract.
- Where a party is unable, wholly or in part, by reason of force majeure, to carry out its non-financial obligations under this Subcontract and that party:
- notifies the other party within 5 Business Days of the force majeure with details of the cause and, to the extent known, the likely extent to which it will be unable to perform or be delayed in performing that obligation;
- states in such notice that it is seeking the benefit of this clause; and
- has not caused the force majeure,then, except as otherwise provided for in this Subcontract, that obligation is suspended to the extent that it is affected by force majeure.
- Each party must take reasonable steps to mitigate or overcome the effect of force majeure on its obligations under this Subcontract.
- If force majeure prevents the performance of this Subcontract for more than 60 days, then the either party may, without limiting its rights under this Subcontract and otherwise at law prior to the termination date arising out of or in connection with the force majeure event, terminate this Subcontract by written notice to the other party, in which case the parties’ rights will be the same as if this Subcontract was frustrated at common law.
DEFECTS LIABILITY PERIOD
- During the Defects Liability Period the Contractor will remedy any defects notified to it in writing by Hindmarsh within a reasonable time.
- The Subcontractor warrants that its work and all materials used in connection with its work will be free from defects for 12 months or as otherwise set out in the Schedule from practical completion.
- Without limiting clause 68, the Subcontractor shall procure from each manufacturer a written warranty in a form acceptable to Hindmarsh and the Principal in favour of the Principal that the relevant item will be free from defects for 12 months or as otherwise set out in the Schedule from practical completion.
- The Subcontractor agrees to enforce any such warranty of the kind referred to in clause 64 upon a request from the Principal or Hindmarsh that it do so.
- The operation of the Proportionate Liability Legislation which would otherwise be applicable is expressly excluded to the maximum extent permitted by law.
- In each subcontract into which it enters for the carrying out of the Works, the Subcontractor must:
- include provisions that, to the maximum extent permitted by law, expressly exclude the operation of any Proportionate Liability Legislation which would otherwise be applicable; and
- require and ensure that each subcontractor includes in any further contract that it enters into with others for the carrying out of the Works, provisions that, to the maximum extent permitted by law, expressly exclude the operation of any Proportionate Liability Legislation.
- In this Subcontract “Modern Slavery” has the same meaning as it has in the Modern Slavery Act 2018 (Cth).
- The Subcontractor must take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in the provision of goods and/or services under this Subcontract.
- If at any time the Subcontractor becomes aware of Modern Slavery practices in the operations and supply chains used in the performance of this Subcontract, the Subcontractor must as soon as reasonably practicable take all reasonable action to address or remove these practices, including where relevant by addressing any practices of other entities in its supply chains.